Citation Nr: 9933282
Decision Date: 11/26/99 Archive Date: 12/01/99
DOCKET NO. 96-00 127A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
Entitlement to service connection for a prostate disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. L. Bunch, Associate Counsel
INTRODUCTION
The veteran had active military duty from July 1961 to July
1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a November 1995 decision by the Atlanta,
Georgia regional office (RO) of the Department of Veterans'
Affairs (VA) which determined that new and material evidence
had not been received to reopen a claim of service connection
prostate disability. The issue certified on appeal is as set
forth on the title page of this decision.
In November 1995 and January 1997 statement, the appellant
raised the issues of entitlement to pension benefits and
service connection for a kidney disability, respectively.
These issues have not been developed for appellate
consideration and are referred to the RO for appropriate
action.
REMAND
In September 1993, the RO denied service connection for
several disorders, to include a prostate disability.
Following the receipt of a notice of disagreement, a
statement of the case was furnished to the appellant and his
representative. A substantive appeal was not timely
received. Thus, the September 1993 decision is final, absent
clear and unmistakable error. 38 U.S.C.A. § 7105 (West
1999).
In November 1995, the RO determined that the appellant had
not submitted new and material evidence to reopen a claim for
service connection for a prostate disability. A hearing was
held at the RO in May 1996. In a decision dated in January
1997, the RO held that all prior actions were improper and
the current decision vacated the reasons and bases portions
of all prior decisions. The RO determined that the September
1993 decision should have been based on whether the claim was
well grounded. The RO then denied the veteran's claim as not
being well grounded. This action was reflected in the
supplemental statement of the case.
It is unclear whether the RO has determined that the
September 1993 rating decision was clearly and unmistakable
erroneous per 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a)
(1999). If no, then the issue being adjudicated is whether
new and material evidence has been received to reopen a claim
of service connection prostate disability. This matter
should be clarified.
A review of the record reflects that the veteran's folder is
a temporary folder and apparently was established in 1993.
In the veteran's application for compensation benefits
received in January 1993, he indicated that he had previously
filed a claim for education benefits. The Board is of the
opinion that additional development is required regarding
this matter.
The veteran during his hearing and in his substantive appeal
indicated that the service medical records are incomplete.
He states that he was treated at the dispensary for back
pain, which he described as a burning type of pain. When he
informed the military doctor he was told he had an infection.
A review of the service medical records shows that the above
referenced records are not on file. In this regard, the VA
may obtain records in its constructive possession, such as
military VA medical records. See Bell v. Derwinski, 2 Vet.
App. 611, 613 (1992).
Accordingly, the case is REMANDED for the following actions:
1. If the original claims folder has not
been located, the RO should take the
appropriate actions as set forth in VA
Adjudication Procedure Manual, Manual
M21-1, Part III, in order to establish a
rebuilt folder.
2. The RO is requested to clarify
whether the September 1993 decision was
clearly and unmistakably erroneous. If
no, the issue being adjudicated is
whether new and material evidence has
been received to reopen a claim of
service connection a prostate disability.
3. The RO should be request the
appellant to furnish the approximate
dates, locations, the names of the
treating facilities, and the units to
which he was assigned when he was treated
for back pain.
4. The RO should inform the appellant of
the evidentiary requirements necessary to
establish new and material evidence per
Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998); 38 C.F.R. § 3.156 (1999) or a
well-grounded claim, whichever
evidentiary threshold is applicable. The
RO should notify the veteran that he may
submit additional evidence, to include
medical evidence and argument in support
of his claim. See Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).
5. The National Personnel Records Center
should be requested to conduct a search
for any additional service medical
records as set forth by the appellant.
Thereafter, the RO should readjudicate the issue in appellate
status as determined by the RO, to include consideration of
the holding in Hodge if applicable. If the benefit sought on
appeal remains denied, the appellant and his representative
should be furnished a supplemental statement of the case with
the appropriate law and regulations, and an opportunity to
respond. Thereafter, the case should be returned to the
Board for appellate consideration, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).